Pro Bono Practices and Opportunities in Ghana INTRODUCTION Pro bono is a new concept in Ghana. This chapter describes the Ghanaian legal system, pro bono and legal aid work and what has been done to increase access to justice. OVERVIEW OF THE LEGAL SYSTEM The Justice System Constitution and Governing Laws The Ghanaian legal system is based on a number of different sources, including (i) the 1992 Constitution of Ghana, (ii) enactments made by or under the authority of the Parliament of Ghana, (iii) any orders, rules and regulations made by any person or authority under a power conferred by the Constitution, (iv) existing law (the written and unwritten laws of Ghana as they existed immediately before the Constitution), (v) any act, decree, law or statutory instrument issued or made before that date, which came into force on or after that date, and (vi) the common law.1 Ghana’s Constitution came into force on April 28, 1992, and states that “justice emanates from the people and shall be administered in the name of the Republic by the Judiciary, which shall be independent and subject only to the constitution.”2 The Judiciary has jurisdiction in all matters both civil and criminal, including matters relating to the Constitution, as well as any other jurisdiction that Parliament may by law confer upon it.3 The Courts Levels, relevant types and locations The Chief Justice is the head of the Judiciary in Ghana and is responsible for its administration and supervision. The Ghanaian judicial system is made up of the Superior Courts (Supreme Court, the Court of Appeal, the High Court and the Regional Tribunals) and the Lower Courts (Circuit Court and the District Courts).4 The Supreme Court is the final court of appeal in Ghana. It has appellate jurisdiction and exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution, including matters relating to whether an enactment was made in excess of powers conferred under the Constitution. The Supreme Court also has supervisory jurisdiction over all courts and over any adjudicating authority. There are also specialized courts, including family tribunals, Gender courts and juvenile courts. District and circuit courts hear all cases. Appointed vs. Elected Judges In Ghana, judges are appointed. In order to be appointed, applicants, who are qualified lawyers, are required to write an examination and also attend an interview. The Practice of Law Education Ghana has a formal legal education system which lasts between two to four years at the undergraduate level (depending on the background of the student). Currently there are 11 law faculties in Ghana. These 1 Article 11 of the 1992 Constitution of Ghana. 2 Article 125(1) of the 1992 Constitution of Ghana. 3 Article 125(5) of the 1992 Constitution of Ghana. 4 See the Courts Act, 1993(Act 459). 227 GHANA are attached to the various universities in the country, including the University of Ghana School of Law, Kwame Nkrumah University of Science and Technology (KNUST), and the Ghana Institute of Management and Public Administration (GIMPA). To be qualified as a lawyer one can enroll in any of the 11 faculties and go through the Bachelor of Laws (LL.B) program for two years to four years. After completion of an LL.B course, students are required to enroll at the Ghana School of Law for their professional Law Course. Licensure The legal profession allows a qualified lawyer to practice as both a solicitor5 and a barrister in all courts in Ghana.6 Foreign trained lawyers are required to do a "Post Call" Law Course to enable them to practice in Ghana. There are no specific rules and requirements incorporated in the Ghanaian legal education program for pro bono work at this time. Demographics: number of lawyers per capita; number of legal aid lawyers per capita According to the General Council of the Ghana Bar Association, as of April 10, 2015, there were 6,759 lawyers in good standing in Ghana7 for a population of over 24 million.8 Most of these lawyers are concentrated in the main cities, namely Accra-Tema, Kumasi, Takoradi and the other capital towns. Legal Regulation of Lawyers Activities of lawyers are governed by the Legal Profession Act of 1960 (Act 30). The General Legal Council of Ghana is mandated by law to regulate and discipline the activities of lawyers in the country. LEGAL RESOURCES FOR INDIGENT PERSONS AND ENTITIES The Right to Legal Assistance Ghana's Justice system does not guarantee free legal services for the poor and less privileged. However, some legal resources are made available for those who cannot afford the services of a lawyer in the form of legal aid. This is different from pro bono work, which is provided by private legal practitioners, but does include representation by a lawyer, including all such assistance as is given by a lawyer, in the steps preliminary or incidental to any proceedings or arriving at or giving effect to a compromise to avoid or to bring to an end any proceedings.9 The Legal Aid Board oversees the operations of the officials of the Legal Aid Board. The Legal Aid Board was established by Act 542 in 1987.10 It is state-funded. There are Regional Offices in all ten regions of Ghana, located in the regional capitals as well as a few district offices in some regions. The Legal Aid Board may rely on its own discretion when deciding to take on cases. In Civil Proceedings The Legal Aid Board works through the Legal Aid Scheme.11 Their cases include enforcing provisions of the Constitution, family related issues including child paternity issues, child maintenance, divorce cases, 5 To practice as a solicitor in Ghana, you must hold a valid annual licence issued by the General Legal Council pursuant to section 8 of the Legal Profession Act, 1960 (Act 32) known as "Practising Certificate". 6 Section 2 of the Legal Profession Act, 1960(Act 32). 7 See http://www.ghanabar.org/members/index.html (last visited on September 4, 2015). 8 See http://www.statsghana.gov.gh/ (last visited on September 4, 2015). 9 Article 294(4) of the Constitution. 10 Article 294 of the 1992 Constitution of Ghana and section 2 of the Legal Aid Scheme Act, 1997 (542). 11 See http://www.legalaidghana.org/web/index.php/about-us/cases-we-work-on (last visited on September 4, 2015). 228 GHANA inheritance and property sharing disputes, landlord and tenant issues, insurance disputes and debt recovery issues. In Criminal Proceedings Some of the criminal cases accepted by the Legal Aid Board include stealing, assault (rape, child molestation), robbery, burglary, manslaughter, murder and nuisance (disturbing the public peace). It is not clear if a person who has been charged with an offence such as treason can benefit from legal aid. State-Subsidized Legal Aid Eligibility Criteria A person is entitled to legal aid in Ghana for the purposes of enforcing any provision of the Constitution, • if he earns the Government minimum wage or less and desires legal representation in any criminal matter; or civil matter relating to landlord and tenant, insurance, inheritance with particular reference to the Intestate Succession Law, 1985 (P. N. D. C. L. 111), maintenance of children and such other civil matters as may from time to time be prescribed by Parliament; or • if in the opinion of the Legal Aid Board the person requires legal aid. Section one of the Legal Aid Scheme Act, 1997(Act 542) establishes the Legal Aid Scheme. The purpose of the Legal Aid Scheme is to develop a comprehensive legal aid program and policy to be carried out throughout Ghana, to supervise the general administration of the Legal Aid program, and to approve the selection of lawyers for participation in the Legal Aid program.12 Under the Legal Aid Scheme Act (§24), apart from an applicant who has been indicted for an offence punishable by death or life imprisonment, any other person who wishes to apply for legal aid under the Scheme must complete the prescribed form and pay the requisite fee. The application must be approved by the Selection Committee appointed under the Act. If an applicant’s application for legal aid is rejected by the Selection Committee, there is a limited appeal process, first to the Regional Committee and then by appeal from the decision of the Regional Committee to the Board of Legal Aid Scheme. An applicant whose application is approved (or who successfully appeals) is exempted from paying the prescribed fee in respect of the filing of relevant court documents and the cost of preparing appeal records. The Board of the Legal Aid Scheme may also instruct the Director of the Legal Aid Scheme to pay on behalf of the applicant all or part of the expenses of the applicant’s case, at the Board’s discretion. Where an award is made in favour of the applicant, the Board may however recover from the applicant at its discretion, some or all of the costs and expenses funded by the Legal Aid Scheme in relation to the application.13 According to the Western Region Director of the Legal Aid Board, the Legal Aid Board does not consider this to be a commission. Rather, it is a way of raising funds internally to help in its activities. Per section 26(1) of the Legal Aid Scheme Act, 1997 (Act 542), the funds for the operation of the Scheme include, (i) money provided by Parliament, (ii) donations, (iii) gifts, and (iv) fees paid by applicants. Gifts and donations are accepted from different sources, individuals and organizations as well as local and foreign sources.